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But although joinder rules are permissive, res judicata imposes a “penalty for
intentionally segmenting the litigation.” Id. Put another way, a plaintiff with “a number of
claims against a defendant” does not have to join them, but deciding not to do so “leaves the
possibility that a plaintiff, actually having a single claim but mistakenly believing that he has a
number of them, may commence a limited lawsuit and then run afoul of the rule against
splitting.” Restatement, supra, § 24 cmt. h. “Virginia law has historically recognized that a
litigant must unite every joinable claim that he has against a particular defendant in one
proceeding or risk the preclusion of his other claims.” Funny Guy, 293 Va. at 146.
“Determining which claims should have been brought in earlier litigation largely depends
on which claims could have been brought.”5 Id. at 143 (quoting Kent Sinclair, Guide to Virginia
Law & Equity Reform and Other Landmark Changes § 11.2, at 247 (2006)). The threshold for
considering whether claims are appropriate for joinder “parallels” the standard applied to
questions of res judicata. Id. at 150 (first citing Rule 1:6; and then citing Code
§§ 8.01-272, -281).6
5 In other words, “if the underlying dispute produces different legal claims that can be
joined in a single suit[,] . . . they should be joined unless a judicially[ ]recognized exception to
res judicata exists.” D’Ambrosio v. Wolf, 295 Va. 48, 54 (2018) (second alteration in original)
(quoting Funny Guy, 293 Va. at 150). Certain carve-outs exist that do not apply here. See, e.g.,
Funny Guy, 293 Va. at 150 n.15; Rule 1:6(c). “[I]n an appropriate case, res judicata, a doctrine
based on public policy, may give way when in irreconcilable conflict with other, more
important[,] public policies.” Bates v. Devers, 214 Va. 667, 670 n.2 (1974); see O’Neil, 75
Va. App. at 323-24. In this case, however, the City made no public-policy argument.
6 “[A] plaintiff may join multiple claims in the same proceeding . . . so long as they ‘arise
out of the same transaction or occurrence.’” Funny Guy, 293 Va. at 151 (quoting Code
§ 8.01-272); see Rule 1:4(k). The Supreme Court has recognized a slight wording difference
between the rules for joinder, which use the phrase “same transaction or occurrence,” and the
rule for res judicata, which uses the phrase “same conduct, transaction or occurrence.” Funny
Guy, 293 Va. at 152. The Court has interpreted the “nearly identical phrase[s]” as “‘apply[ing]
the same test.’” Id. (quoting Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure
§ 14.11[B][5], at 1220 (6th ed. 2014) (emphasis added)). Jump to an indexed page (12 of 12)